Every U.S. state and local government unit has open public meeting requirements codified by law, as does the federal government. Open meetings that involve new technology can offer incredible advantages by allowing for wider participation in the discussion of public issues. Due to the pandemic, an increasing number of bills are coming up in state legislatures that would make videoconferencing an ongoing option for open governmental meeting requirements. COVID-19 has made the use of technology for governmental agencies essential. Many states, including Texas, Nebraska, California, North Dakota, and New York, have enacted legislation that permits virtual participation via videoconferencing, conference call, or similar services. (Visit this site for a state-by-state database that details laws on remote meetings.)
No one anticipated a global pandemic, and these efforts to allow for virtual participation have largely been done in a good-faith manner to maintain core governmental services with some degree of openness. However, because of this unique development, we have little experience or evidence to show that this type of system meets democratic principles of OA and accountability. The actual ability to participate is another key issue, due to the digital divide and the accessibility needs of various communities.
“The COVID-19 pandemic shifted public meetings online, potentially reducing the time costs associated with participating,” notes “Still Muted: The Limited Participatory Democracy of Zoom Public Meetings,” a February 2022 article in Urban Affairs Review. “We find that participants in online forums are quite similar to those in in-person ones. They are similarly unrepresentative of residents in their broader communities”—and often, those with the most strident opinions on a particular issue under consideration are the voices dominating a meeting.
For these public meetings and governmental hearings, the needs are even more complex due to the requirements of the Government in the Sunshine Act, a U.S. law passed in 1976. The law specifies that all meetings, votes, deliberations, and other official actions be open for public observation, participation, and/or inspection. It also specifies that records of these sessions must be made available after the fact, which means they require quality assurance and editing for content and language, and they have to be indexed so future users are able to reasonably find information, testimonies, and discussions.
A September 2021 investigation by the Colorado newspaper The Chaffee County Times found that local government offices are “not consistent in whether to commit Zoom chats to the public record,” despite Colorado’s Sunshine Laws and records-retention policies requiring that they do so. A key issue is that “virtual and hybrid-virtual meetings are fairly new and not formally or explicitly mentioned in law and policy.”
Justin Silverman argues in a January 2022 article in the nonprofit magazine CommonWealth that pandemic-driven changes to open meeting laws should be permanent as a way to help journalists—and in turn, the community—hold government accountable. Journalist Alex Newman tells Silverman, “I’ve covered more meetings since COVID than I ever have before. … I don’t have to drive. … I can watch the meetings the next day.” Silverman asserts, “The benefits of robust local journalism are plentiful: less government corruption and municipal mismanagement, increased civic engagement and less partisan polarization, more economic investment and better public health information, among many others. The remote meeting capabilities we now have in place are a means to these ends.”
For information professionals, these virtual meetings are complicated by the requirements to make government data and information as publicly available as possible. How can libraries find ways to help provide ongoing, long-term access to the contents and decisions of these sessions? How do we balance issues of individual privacy, yet still make the discussions and decisions truly accessible to all groups (such as with closed captioning and other Americans with Disabilities Act requirements)? What types of archiving or indexing would be needed to make these meetings findable and linked to the discussions, decisions, and issues being considered? What type of storage might be required if governments themselves choose not to archive the sessions?
Zoom offers a variety of options and features. All conversations are automatically recorded once the session is established and the leader/host pushes the broadcast button. Zoom recordings can be downloaded, and the leader/host is able to provide information on the nature of each session (participants, dates, etc.) After the event, most saved conversations can be trimmed using QuickTime or a similar editing program. Libraries and library organizations have been offering assistance with using Zoom and other virtual meeting platforms. For example, the Idaho Commission for Libraries has produced Suggested Best Practices for Zoom Meetings. In addition, Canada’s Wilfrid Laurier University provides good advice on archiving Zoom videos, and Santa Rosa Junior College offers aid for students on downloading and saving Zoom recordings.
EVOLVING FRAMEWORKS FOR ONLINE PUBLIC MEETINGS
Matt Ehling, founder of the Forum for Constitutional Rights, has been involved in journalism, public affairs education, public interest litigation, and nonpartisan government oversight work for 3 decades. “In Minnesota, state law already allowed government entities covered by the state’s Open Meeting Law to conduct meetings by means of ‘remote technology’ even prior to the COVID-19 pandemic,” he says. “In general, there must be at least one member of the public body at the regular physical meeting site, which must remain open to the public. All other members of the public body (and attending members of the public) must be able to hear each other (for state agencies) and hear and see each other (for cities/counties/school boards).” In addition, the government entity holding the meeting “must, to the extent they have the technological capacity, provide a remote monitoring option to the public for those who are not on site at the regular meeting place. Prior notice of remote meetings is handled the same way as regular open meeting.” During an emergency—declared as such under Minnesota’s Emergency Management statute—the meeting location may be closed to the public, and, says Ehling, “the ‘see and hear’ requirement for local governments is changed to just a ‘hear’ requirement (due to concerns raised by townships and rural communities that they might not have sufficient internet bandwidth to run full video remote meetings).” This applied during the pandemic, but “the remote ‘pandemic’ provision of the Open Meeting Law (13D.025) was amended to ensure that public comment periods could be offered during remote meetings when the regular physical meeting location of a government entity was closed.”
In Minnesota, Ehling says that “during the 2022 legislative session, some bills were introduced to remove the ‘publicly accessible’ place requirement in the remote meeting statute governing local officials (Minn. Stat. 13D.02). Some local governments were pushing to go all-remote, all the time, without giving the public the opportunity to meet in person with representatives, as required by the current rules governing remote meetings of local government entities.” As for finding the meetings after the fact, Ehling says, “Retention, archiving, and long-term access is not well-covered in Minnesota or elsewhere. In Minnesota, governments can adopt retention schedules to ensure that the video recordings are maintained for a standardized period of time, [but] some do this already, and some do not.”
TECHNOLOGY CAN INCREASE INCLUSIVE GOVERNANCE
“I think there is much to commend about the advent of Zoom government meetings,” says Jane Kirtley, Silha Professor of Media Ethics and Law at the University of Minnesota and director of the Silha Center for the Study of Media Ethics and Law. She continues:
Those directly affected by the issues debated and actions taken in live meetings often have neither the time nor the resources to attend in person, and must reconstruct what happened based on news reports (if any) and minutes (which may not be posted for weeks). Those with certain disabilities may find it physically impossible to attend live meetings in person—perhaps the building has limited adaptations, for example. For many, attending a Zoom meeting can be more spontaneous, because it typically would not require paying for parking or public transportation, hiring someone to provide child care, leaving work, or having to battle the elements (like a rain- or snowstorm) to get there.
On the other hand, it can be challenging for journalists and activists to interact with government officials if the meeting is via Zoom. Using the online chat, Q&A, or ‘raise hand’ functions to make statements, or (more importantly) ask questions, can be cumbersome. Attendees may be overlooked (by accident or deliberately). Spontaneity may be lost. And the technology may fail.
I’d like to see legislatures embrace the concept of hybrid meetings that can be attended both in-person and remotely. In an ideal world, they would subsidize multiple live locations for remote participation.
THE FIGHT FOR DIGITAL INCLUSION
In 2020, the Federal Communications Commission (FCC) announced agreements with 800-plus broadband and wireless companies to waive late fees and provide exceptions for users who could not pay their bills. Called the Keeping Americans Connected Pledge, it only lasted for a little more than 3 months. The ability, then, for many people to use this as an avenue for digital inclusion in their government was slight, let alone to use it for any other purpose. In addition, the National Digital Inclusion Alliance released a Guidebook in 2022 that is focused on practical advice and options for those who are “working toward digital equity in our communities by working together, across a variety of organizations and institutions. …”
THE BATTLE FOR TRULY OPEN PUBLIC DISCUSSION CONTINUES
The Urban Affairs Review article mentioned earlier is a sobering assessment of the state of open government. It notes, “The shift to online meetings does not appear to significantly worsen disparities—despite the digital divide. But, it also does not improve representation—even in the face of the broader political mobilization of groups traditionally underrepresented at local political meetings.” The authors note that per their evidence, “reformers concerned about demographic disparities and skews in what government hears should not rely on online meetings as a solution. More generally, [the evidence] suggests that practical barriers are not the primary source of participatory disparities and that other attempts to improve participation through logistical solutions are unlikely to make a big impact.”
A 2020 American Academy of Arts and Sciences report, called “Our Common Purpose: Reinventing American Democracy for the 21st Century,” warns its readers against the assumption that “more democracy simply in the form of more participation will solve our problems. We seek instead to achieve healthy connections between robust participation and political institutions worthy of participation.” I think all information professionals would agree.